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Share of FH yet no Deed of Trust - roof conversion

30-01-2013, 11:10 AM

I own a ground floor flat and share of freehold with the upstairs flat. The upstairs owners are planning to build a roof extension. They have been granted planning permission and are due to start very soon. We have no deed of trust in place and therefore they are of the opinion they do not need our consent to build on the roof. Their solicitor has said they do not need our consent as they would not be trespassing since the area is jointly owned.

Our reasons for objecting are mostly due to the noise. The floors are not sound proofed and adding another room at the top will mean more people and more noise. Added to that I believe an area which is jointly owned should be jointly beneficial so there should be some sort of payment to us for consent.

The top floor flat must get permission from the freeholder to use
the roof space. ( Buy the roof space- as well ! )
As you are, as you state, a 50% freeholder, then if you do not
give permision for the alteration, then in theroy, he cannot proceed.

You say you have no deed of trust, so what else do you have ?
A lease ? a hand written promissory note ?

I ask this so others may advise you accordingly.

Also, ( being my usual confrontational self ) if you share ownership
of the property, you have a share in the roof space, as you have a
share of the drives, path, front and rear garden, which alows you
to use those when you like.
The "common parts" should be as above - Garden etc, and also
the roof space.
If you don't get a clear answer, then insist that the roof space must
be bought from the freeholders.
If he declines then you state as the roof is common parts, you want
to use the new space all day Saturday, Sunday, Wednesday,
and 12 hours Friday ( 3 ½ days out of 7 = 50% )

So other more infomed people can give you legal advice, what
legal documents do you have.
( in relation as to who owns what, and who can use it )

R.a.M.

Comment

The top floor flat must get permission from the freeholder to use
the roof space. ( Buy the roof space- as well ! )
As you are, as you state, a 50% freeholder, then if you do not
give permision for the alteration, then in theroy, he cannot proceed.

You say you have no deed of trust, so what else do you have ?
A lease ? a hand written promissory note ?

I ask this so others may advise you accordingly.

Also, ( being my usual confrontational self ) if you share ownership
of the property, you have a share in the roof space, as you have a
share of the drives, path, front and rear garden, which alows you
to use those when you like.
The "common parts" should be as above - Garden etc, and also
the roof space.
If you don't get a clear answer, then insist that the roof space must
be bought from the freeholders.
If he declines then you state as the roof is common parts, you want
to use the new space all day Saturday, Sunday, Wednesday,
and 12 hours Friday ( 3 ½ days out of 7 = 50% )

So other more infomed people can give you legal advice, what
legal documents do you have.
( in relation as to who owns what, and who can use it )

R.a.M.

One legal point to consider is whether the freehold title is registered as well as both leasehold titles.
If all three titles are registered then there will be conclusive evidence about what property was demised by the leases and what property remains totally in the ownership of the freeholder.

It is a fact of property law that a lease cannot be in the same name as the freeholder, which is why so many properties that were divided into two flats have the freehold in the joint ownership of each flat tenant. Each time a flat lease is transferred the new leaseholder is usually conveyed the half share of the freehold as part of the deal.

Did that happen when the flat was bought by you?
Were the changes in ownership recorded with Land Registry for both leasehold and freehold titles?

Comment

We only recently bought the freehold and didn’t get round to putting in place a deed of trust before the upstairs owners proceeded with planning. Therefore, as it stands we have documentation to say we own a share of the freehold and we each have our separate leases. Neither of which refer to the roof space.

I agree with your response and am therefore confused as to why their solicitor has said in writing they do not need our consent to proceed with the build.

It is going to be a costly process through our solicitors and I think you have given me some reassurance that it will be worth it.

Comment

It depends entirely on the lease. If the roof and space is not included in the lease then they are intruding into and altering property which you jointly own.

The freeholders, you and FFF, therefore have an asset which has a vlaue which the freeholders are entitled to a vlaue form FFF as a leaseholder.

If however the roof and area in within their lease then likely it is imply a matter of consent and adjusting the service charge percentages for any shared costs or insurance.

As to consent I would want to see that the builder is reputable experienced and preferably qualified and in order to grant consent, that the freeholders, you and FFF appoint a charted surveyor and or engineer to approve the works, and that FFF not just the builder has adequate insurance in place.

They will not be able to mortgage or sell without that consent.

That said how nice it will be living in a building where ultimately you could end up hating and beholden to each other
....

Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

Comment

Before you engage solicitors, and after you may receive more replies,
( can take 5 hours to 5 days ) just write to the top flat stating the
previous and future answers you get here.
Why pay £ 250 per hour if it's a simple matter of you are 50%
freeholder, and do not give permission. !
( assuming it turns out to be that simple )

R.a.M.

Comment

You said you recently bought freehold and are also referring to deed of trust. The latter is normally used to ensure contractual nexus in Tyne & Wear type leases where 1st party owns freehold of upper flat outer shell and leasehold of lower flat inner shell and 2nd party the opposite. Is that the case here.

Other q is a conveyancers would normally sort all this before completion to avoid prejudicing a lenders security, not sure why you had obligation to sort this.

Look forward to hearing from you and as previous poster the devil is on the detail regarding in particular roof space.

Comment

One problem you have is the 50/50 share, no majority so, ultimately, no authority.

Another way of determining if you (as FH) have an interest in the loft is if there is any mention of who is responsible for repairing the roof. If a lessee has sole responsibility for maintaining an item it's usually because it's demised to them.

On a final note, noise is not a valid objection. Very few things are sound proof, but flats (purpose built or converted) more than 15-years old are unlikely to have much in the way of acoustic insulation (unless the works were carried out above the standard of the Building Regulations).

There is always scope for misinterpretation.

If my posts can be interpreted in two ways, one that makes you feel angry and one that doesn't, I meant the latter.

The right of way will only be a problem when it passes around the extension then after that there is plenty of room, I wont be needing room for maintenance for the extension as it wont be my responsibility, anyway I spoke to the other freeholder and he has agreed to one metre, I suggested...

PLAN.
You need a new floor plan drawing showing a wall has disappeared, and a door moved.
A deed of variation not required, a you have not gained any aditional rights, nor lost any rights within the lease.

Hello and Thanks for such a quick reply.
I have got in touch with BC to ask for comments.
Just another question has sprung to mind: if the other freeholders agree to the changes, would I need a deed of variation with new planimetry? or an email confirming it will suffice?
Thanks a...

There is no mention with in the leases about dimensions for access, only that I the first floor maisonette has access through the downstairs garden for the reason of maintenance. at the moment there is a shed with a gap from the building of around 80cm, its never bothered me but because...